He who dictates the law, controls the conditions and criteria which govern a process. Whether such dictation is an accurate reflection of the actual substance of the law, of course, is another matter.

Thus, when the Office of Personnel Management applies their 7-part criteria, they purportedly and in declarative form assert that it is based upon the substantive law which is extrapolated from the statutory authority which underlies Federal Disability Retirement laws, statutes, regulations, and expansive case-law as handed down from the U.S. Merit Systems Protection Board decisions and opinions rendered by the Federal Circuit Court of Appeals cases.

Merely asserting that a given set of legal criteria has been applied, does not constitute a verification of the proper interpretation of what the law means. Proper interpretation requires legal analysis, an understanding of the context of how the law was applied, in what fact-scenarios the law was cited, and an argument as to whether it applies in one’s own set of factual circumstances.

Indeed, often the U.S. Office of Personnel Management will describe a linear state of a Federal or Postal employee’s set of medical reports, conditions, etc., then merely declare that the legal criteria was applied, then (without any explanatory nexus between the facts and the conclusion) make a decision stating that the medical conditions “did not satisfy the legal requirements” — without any bridging explanation as to why such a statement should be accepted as true.

Having the authority to dictate the law is one thing; such authority does not mean that one is right, or that such authority grants the agency any great insight into proper legal reasoning. Fortunately, there are appellate procedures, such as the next step in the process — the Second Stage of the process (Reconsideration Stage), and beyond, to the U.S. Merit Systems Protection Board.

The criteria, as stated, can be both helpful, as well as result in a negative determination, for multiple reasons. To the extent that it extrapolates and extracts from the relevant Code of Federal Regulations, it minimally states the fundamental legal requirements for eligibility of a Federal or Postal employee who is filing for Federal Disability Retirement benefits.

However, because such a basis only extracts from the originating statutory foundation for eligibility, what it completely ignores is the continually evolving cases which clarify, interpret and define the very terms which constitute the criteria. To that extent, OPM’s adherence to the strict and narrow application of the original “law” can often result in a negative determination, precisely because such an application ignores the subsequent clarifications which have evolved and progressed from various cases which have been litigated, both in the Federal Circuit Courts as well as at the Merit Systems Protection Board level.

Beware of the 7-part criteria; if followed, it can backfire; if not followed, it can backfire. The 7-part criteria is a Catch-22 in sheep’s clothing.

There is “The Law” — the originating, statutory authority which is passed by Congress — then, the compendium of the entirety of the legal arena, which includes decisions handed down by Administrative and Federal Judges, which comprise the expanding and evolving interpretation, clarification and extension of “The Law”.

Unfortunately, in making its decision on an Application for Federal Disability Retirement benefits under FERS or CSRS, the Office of Personnel Management constrains itself (and its knowledge of the law) to a template based upon a “7-part criteria” which is extrapolated from the Code of Federal Regulations.

This 7-part criteria is a simplistic and misleading application of the law. It is not so much that it is an “error” on the part of the Office of Personnel Management to apply such a criteria; rather, it is that, in evaluating and determining the sufficiency, viability, and meeting of the standard of proof of “preponderance of the evidence” of a Federal Disability Retirement application under FERS or CSRS, it simply does not go far enough. Because the 7-part criteria fails to include the interpretive evolution of the entirety of the laws governing Federal Disability Retirement, it fails by excluding many Federal Disability Retirement applications which are based upon legal criteria which fall outside of the delimited circumference and parameters of what OPM has set forth.

Seven False Myths about OPM Disability Retirement

1) I have to be totally disabled to get Postal or Federal disability retirement.
False: You are eligible for disability retirement so long as you are unable to perform one or more of the essential elements of your job. Thus, it is a much lower standard of disability.

2) My injury or illness has to be job-related.
False: You can get disability even if your condition is not work related. If your medical condition impacts your ability to perform any of the core elements of your job, you are eligible, regardless of how or where your condition occurred.

3) I have to quit my federal job first to get disability.
False: In most cases, you can apply while continuing to work at your present job, to the extent you are able.

4) I can't get disability if I suffer from a mental or nervous condition.
False: If your condition affects your job performance, you can still qualify. Psychiatric conditions are treated no differently from physical conditions.

5) Disability retirement is approved by DOL Workers Comp.
False: It's the Office of Personnel Management (OPM) the federal agency that administers and approves disability for employees at the US Postal Service or other federal agencies.

6) I can wait for OPM disability retirement for many years after separation.
False: You only have one year from the date of separation from service - otherwise, you lose your right forever.

7) If I get disability retirement, I won't be able to apply for Scheduled Award (SA).
False: You can get a Scheduled Award under the rules of OWCP even after you get approved for OPM disability retirement.